Why should I have a will?
Because if you don’t then you have no executor and therefore no one is authorised to represent your estate. An application for Letters of Administration can cost thousands of dollars. Also, someone you don’t even like (or know!) could end up being your Administrator.
Litigation – the process of taking court action.
Estate Litigation – litigation about a will or an estate.
Will – a document in which a person sets out how they would like their estate to be dealt with when they die. It will also usually appoint an Executor.
Intestacy – Describes the situation where someone dies without a will – the person is said to have died intestate.
But I don’t have any assets, what’s the point in having a will?
These days everyone at least has superannuation. Most super policies also contain life insurance, which can be substantial. This can become part of your estate.
Superannuation death benefit – When you die, the balance of your superannuation account is combined with any life insurance proceeds and the two amounts together are called your “super death benefit”. This does not always get paid to your estate, it can be paid directly to entitled persons. The trustee of the superannuation fund usually has a discretion as to who to pay the money to (subject to laws governing who is allowed to receive it).
Do I need Probate (or Letters)?
Not always. Sometimes an estate can be administered without a grant. More often than not one is required, though. A lot of asset holders (e.g. banks, nursing homes) won’t hand over the money without one. They are entitled to insist on the production of a grant as it is their legal protection that they are paying the money to the right person. If the estate is involved in litigation then a grant will be required.
Probate – is the Supreme Court’s official recognition of a person’s will. It is a piece of paper attached to the front of the will, with the Court’s stamp on it. Probate can only be granted to an executor named in the will.
Letters of Administration – often referred to simply as “Letters”, it is similar to Probate, except when either there is no will (an intestacy), or the Executor named in the will cannot or will not act (e.g. because they have died, or they have lost capacity, or they simply don’t want to).
Grant – Probate and Letters of Administration are both sometimes referred to as “a grant” (because you obtain “a grant of probate” or “a grant of letters”).
What does an executor have to do?
There are many duties of an executor, but in simple terms, they must collect all the assets, pay all the debts and distribute the balance of the estate to those entitled at law.
Executor – is the person you name in your will to deal with your estate when you die. An executor obtains a grant of probate.
Administrator – where there is no executor, the court appoints an Administrator to do the same thing as an executor does. An Administrator obtains a grant of Letters of Administration.
Attorney – is the person named in the power of attorney document to make the decisions on behalf of the other person.
Power of Attorney – is a document that authorises another person to act on your behalf.
Enduring Power of Attorney – is a power of attorney that “endures” (or continues) after a person loses the capacity to make decisions for themselves.
Guardian – is a person appointed by QCAT to make personal and health decisions on behalf of a person who lacks capacity.
QCAT – is the Queensland Civil and Administrative Tribunal. A lot of disputes about powers of attorney go to QCAT.
Financial Administrator – a person appointed by QCAT to make financial decisions on behalf of a person who lacks capacity.
Family provision application – accepting the validity of the will but asking the court for more money. A family provision application can only be made by a “spouse, child or dependant”.
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